Arnold Swartz and Associates

Business and Family Mediation

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Commercial Articles

Archived Content: Commercial

Commercial Mediation Articles




Najar on Dispute Management 2.0 (12/19/14)
F. Peter Phillips
Najar, his colleague Michael McIlwrath, his former colleague PD Villarreal, and others at General Electric were responsible for pounding into my head two distinctions. The first was the concept of “dispute management” rather than “dispute resolution,” and the other was “Early Dispute Resolution” rather than “Alternative Dispute Resolution.”


Non-Judicial Means of Collective Redress in Europe (12/19/14)
Beth Graham
S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.


Beyond “Getting to Yes:” Building Mediation Skills and Insights into Relationships (12/16/14)
Tom Stipanowich
A quarter century ago many believed we were experiencing a revolution in the way conflict was managed. Nowhere was this more noticeable than in the construction sector, the primary focus of my practice as an advocate and dispute resolution professional.


Some Good Questions (12/01/14)
John Lande
In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.”


Use and Perception of International Commercial Mediation and Conciliation (12/01/14)
Beth Graham
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.


What is a “Tiered Dispute Resolution Clause” and What Options Does it have to Offer? (11/21/14)
Michael A. Zeytoonian
Tiered dispute resolution clauses in contracts -- this is the first step in providing clients with alternatives to court and litigation. It gives parties value in three ways: (1) It gives them the opportunity to work together on how they will resolve a dispute; (2) it allows lawyers to educate their clients on what their options are, how they work and what their pros and cons are while the parties are calm and agreeable; and (3) it gives the parties more control over the process as well as the outcome.


Arbitration in Evolution (11/14/14)
Beth Graham
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.


$1B Settlement Reached in Stryker Hip Implant Mass Tort (11/14/14)
Chris Poole
Thousands of plaintiffs in New Jersey and around the country who had surgery to remove failed hip implants settled their claims November 3 in a deal that is expected to pay out more than $1 billion. It was reached after four months of negotiations with Stryker mediated by retired U.S. Magistrate Judge Diane Welsh, a JAMS mediator based in Philadelphia.


The Growth of Arbitrator Power to Control Counsel Conduct (11/14/14)
Margaret Moses
There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice.


Legal Mediation News Update - November 2014 (11/12/14)
Keith Seat
This is another in a series of updates on Legal Mediation News from Mediate.com News Editor, Keith Seat.


Reflections on the State and Future of Commercial Arbitration (11/11/14)
Beth Graham
What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.


Metrics (11/11/14)
Joe Markowitz
I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts


The Urgent Need For Data: Are the Needs of Users and the Dispute Resolution Market Misaligned? (11/07/14)
Deborah Masucci, Michael Leathes
Seismic tremors emanating from London's Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution's customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.


The Italian ADR Saga: a Machiavellian Plot, or Just Lawyers Without a Plan (10/24/14)
Giuseppe dePalo
Mediation has long been a matter of contention in Italy. First introduced by a government decree in 2011, mandatory mediation resulted in strikes by part of the legal profession, and was then quashed in 2012 by the country’s Constitutional Court. As the number of mediations dropped drastically after the court decision, in September 2013 Italy re-introduced the mandatory requirement. The country is still in the growing pains of a new system.


Workplace Conflict – Putting It in Context (10/24/14)
Jon Warner
Many articles on workplace conflict miss out on a key subject area and one which is often best considered first – the context within which the conflict has arisen in the first place. In other words, we cannot consider a conflict situation in isolation from the circumstances in which it has occurred, and the key to its resolution may well lie as much in this contextual realm as it does in appreciating the conflict issue and the people involved in the dispute.


Federal Judge Orders Google Wallet Consumer Privacy Dispute to Mediation (10/24/14)
Beth Graham
A federal judge in California has reportedly ordered a consumer privacy dispute that was filed against technology giant Google to mediation.


Trade Secret Mediation: Negotiating Beyond the Distrust (10/21/14)
Erica Bristol
Trade secret litigation often involves deep levels of distrust, suspicion, and anger on the part of parties and counsel. To avoid trial, the plaintiff must negotiate with the thief, adding insult to injury. The defendant may express outrage at being accused of theft, and suspect the litigation is merely a “fishing expedition” to uncover the defendant’s own trade secrets. How then can the parties overcome these issues and reach agreement during mediation? This article provides counsel with information and suggestions for successfully mediating trade secret disputes.


The Trading Zone in Mediation of Employment Disputes (10/21/14)
Jan Schau
Sometimes I feel like I’m in the middle of a tug-of-war. This week I had the anomolous situation of having two nearly identical full day cases back to back. In the first, the Plaintiff started the demand at $1 million and Defense offered $30,000 (the equivalent to one year of salary). She was alleging age discrimination, though the Company had laid her off in a reduction in force and she was only 42. In the second, Plaintiff started the demand at $200,000.00.


Walking on Eggshells (10/13/14)
Cinnie Noble
When applied to interpersonal conflict I think of those disconcerting situations – such as walking on eggshells – when I am reluctant to raise an issue expecting that by doing so I will overly upset the other person. It seems this is most likely to occur when I have a history with and am aware of her or his sensibilities. Though I expect it also happens when we don’t know the other person but reckon that what we have to say will be difficult to receive. In any case, the image itself – from whatever the source –conjures up an extremely uncomfortable experience.


Lessons from Jerusalem: What Attitude Do We Bring to our Conflicts? (10/13/14)
Michael A. Zeytoonian
Strange as this might sound, I had the good fortune of being in Israel during a war, a declared cease fire and its aftermath, and experiencing how these impacted the people involved. While it was a source of some tension and heightened vigilance, it provided a rare opportunity to experience the shifts and changes that occur when a war stops and a cease fire is in effect, in this place that has been a historical hotbed for conflict.


Harvesting Data to Shape the Future of International Dispute Resolution (9/22/14)
Deborah Masucci, Michael Leathes
Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.


Prisoner’s Dilemma Game Show (9/19/14)
Andrea Schneider
In class earlier this week, we rebooted the idea of the prisoner’s dilemma as previously portrayed on The Bachelor Pad (discussed on the Freakonomics Blog and four years ago on this site). This time, the conversation revolved around a British game show called Golden Balls that was very popular several years ago. I can only assume that you’ve already discounted Golden Balls’ educational value based on its name alone but bear with me . . .


New AAA Consumer Arbitration Rules are Now in Effect (9/19/14)
Beth Graham
On September 1st, new American Arbitration Association (AAA) Consumer Arbitration Rules went into effect. The 55 new rules reportedly replaced the eight Consumer-Related Disputes Supplementary Procedures that previously applied to consumer arbitrations filed with the organization. The new rules apply to all arbitral cases filed after September 1, 2014


What’s a ‘Successful’ Mediation? (9/05/14)
Katherine Graham
Mediation is commonly measured in terms of settlement rate (i.e. did the parties agree?) and you’ll see figures like ’80% settlement rate’ bandied about. In our view this is not the only measure of success. There are many more! Think about which measures matter to you – the parties, the mediators, and your organisation.


Rethinking Negotiation Strategy (9/02/14)
Dale Ordas
Too frequently, negotiations are fruitless due to inadequate preparation. Rethinking Negotiation Strategy sets forth critical areas that should be part of the preparation for negotiation. In each segment there are references, which provide for a more in depth exploration of these indispensable tools for the successful negotiator.


Resolucion Alterna de Conflictos en Costa Rica y la Apertura Hacia Nuevas Formas de Gestionar el Conflicto (9/01/14)
Rolando Perlaza Perez
Hace 17 años en Costa Rica se promulgó la Ley Sobre Resolución Alterna de Conflictos y Promoción de la Paz Social ley número 7727 (Ley RAC) y se iniciaron campañas de formación y concientización de la ciudadanía sobre las ventajas y bondades de la solución pacífica, dialogada y colaborativa del conflicto. Desde entonces, Costa Rica ha avanzado en el desarrollo y fortalecimiento de los métodos tradicionales de RAC (Resolución Alterna de Conflictos), entiéndase Arbitraje, Mediación/conciliación, Negociación y en los últimos años los Círculos de Paz. Incluso en el año 2011 se promulgó la Ley Sobre Arbitraje Comercial internacional Ley 8937, que sienta las bases para que Costa Rica sirva de Sede para arbitrajes internacionales de naturaleza comercial.


The Negotiation Campaign (8/25/14)
Jeffrey Krivis
Negotiations are like political campaigns. It is an organized effort to influence decision makers. Don’t just throw a case against the wall and hope the other side gets it. Mount a negotiation campaign that is strategic and considers who might be needed to vote for your side and what they will need to solidify their vote.


Hat Trick: NHL Adds Arbitration Clause (8/22/14)
Jill Gross
Little did I know that I was on NHL.com’s email list. I guess having a son wild about all things hockey must have had something to do with it. So you can imagine my surprise on Saturday morning when I woke up to an email from NHL.com informing me of the new arbitration clause it was adding.


Effects on Settlement of Post-Grant Patent Review Proceedings (8/22/14)
James M. Amend
The recent America Invents Act both modified and created procedures for challenging patents in proceedings before the United States Patent and Trademark Office (PTO) after they have been issued, which are called post grant reviews (PGRs).


On What Level Are We Mediating? (8/08/14)
Oran Kaufman
How do you define success in mediation? The answer depends in part on who is asking the question? Success for the parties may be different than success for the mediator or success for the court. This article explores the question of how to define success in mediation from a variety of angles including what does success mean for the mediation profession?


ABA / Straus Institute Survey (7/18/14)
Tom Stipanowich
One of the three recent surveys undertaken by the Straus Institute in 2013 as part of the Theory-to-Practice Research Project was a survey of corporate counsel co-sponsored by the American Bar Association’s Section on Public Utilities, Communication and Transportation (PUCAT) ADR Committee.


EBay y Sotheby’s se asocian para transmitir subastas de arte por Internet (7/18/14)
Alberto Elisavetsky
La compañía de comercio electrónico eBay y la casa de subastas Sotheby’s para transmitir en directo Internet algunas de las subastas que tengan lugar en la central de la casa de subastas en Nueva York. Se hará a través de una nueva plataforma que la empresa australiana de comercio electrónico añadirá en su página web, y se planea que el siguiente paso sea que los internautas puedan pujar desde cualquier parte del mundo. Las dos empresas tienen previsto centrar esta apuesta digital en segmentos como la joyería, los relojes, los grabados, la fotografía, el vino y el diseño del siglo XX.


20 Questions Every Corporate General Counsel or Head of Litigation Might Ask in Mediation (7/11/14)
Michael Leathes
Being responsible for resolving a large number of disputes for any organization is a stressful occupation. It involves risk, cost and resources and navigating between leadership and management, success and failure as well as blame and experimentation. Although there is no magic bullet, the task can be aided considerably by harvesting the answers to the following twenty questions, and devising an action plan where weaknesses are exposed.


Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations (7/09/14)
J. Ryan Lamare, Tom Stipanowich
As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward alternative dispute resolution (ADR).


Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play (7/09/14)
Zachary Ulrich, Tom Stipanowich
The Straus Institute recently conducted two major surveys of dispute resolution professionals: a survey of experienced arbitrators with the cooperation of the College of Commercial Arbitrators, and a survey of experienced mediators with the cooperation of the International Academy of Mediators. These studies produced a wide array of new information on arbitrator and mediator practices and perspectives that we hope will contribute to debate and discussion on many current professional issues. We are presently writing these up. The first fruit of these studies is the just-completed article Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, which leads off the new Yearbook on Arbitration and Mediation.


Lack of Consumer Interest in Binding Arbitration Agreements (6/30/14)
Savannah Steele
This article takes a look into the Am. Exp. Co. v. Italian Colors Rest Supreme Court ruling, attempted Congressional remedies, and current studies on the rights of consumers in regards to binding arbitration clauses.


The Settlement Drift (6/21/14)
Jeffrey Krivis
The "drift" in our ability to go to war, as written about by Rachael Maddow, is similar to what has become of modern mediation in the litigation arena. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was initially seen as the final play in the drama. Now, almost 25 years later, the mediation session has transformed itself into just one additional step in the litigation menu. The process has become strained to the point that the current approach is to schedule mediation without any sense of urgency. It is done to comply with a court order or simply as a matter of practice, now often with no expectation of finality.


How to Encourage Perspective-Taking (6/13/14)
Caryn Cridland
When people get angry or upset, they have the tendency to forget to look at other possible circumstances or view points of the situation. They look at just the behaviour and not the possible intentions or causes of the behaviour. It is the mediator’s role to help the parties to see other view points. The article explores examples of situations where perspective-taking can be beneficial. It also explores strategies that encourage perspective-taking. These include telling stories where the participants have been pushed to a point, examining their own behaviour and looking at common values or goals.


The Hearty Handshake, and Other Lessons From My Father (6/13/14)
Jan Frankel Schau
With more and more mediation hearings occurring before the litigation gets fully underway, many disputants and opposing counsel have never met before the mediation hearing. In a handshake study conducted at the Harvard Business School, subjects were asked to negotiate a mock purchase and sale of a piece of real estate. The control group was requested to begin with a handshake. The other group were seated across the table from one another and most of them entered into an immediate negotiation without bothering to shake hands beforehand.


Settlement Conferences and the Price of Contempt (6/06/14)
Mary Novak
In a settlement conference, what is the value of having someone present with full authority to settle? If one party lacks the authority, it can result in aggravation, wasted court fees, and lost time for trial preparation. American Family Insurance (AFI) recently learned this to their cost in a dog-bite case in Washoe County, Nevada. Because Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000.

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